As filed with the Securities and Exchange Commission
on November 20, 1998. File No. 33 -
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
RELIV' INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Illinois 37-1172197
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation)
136 Chesterfield Industrial Boulevard
Chesterfield, Missouri 63005
(314) 537-9715
(Address, including zip code, and telephone number, including area code of
registrant's principal executive offices)
RELIV' INTERNATIONAL, INC.
1998 DISTRIBUTOR STOCK PURCHASE PLAN
(Full title of the Plan)
Robert L. Montgomery Copies of Communications to:
Chief Executive Officer
Reliv' International, Inc. Stephen M. Merrick, Esq.
136 Chesterfield Industrial Boulevard Scott P. Slykas, Esq.
Chesterfield, Missouri 63005 Fishman, Merrick, Miller, Genelly,
Phone: (314) 537-9715 Springer, Klimek & Anderson, P.C.
Fax: (314) 537-9753 125 South Wacker Drive, Suite 2800
(Name, address, including zip code, Chicago, Illinois 60606
and telephone number, Phone: (312) 726-1224
including area code, Fax: (312) 726-2649
of agent for service)
CALCULATION OF REGISTRATION FEE
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| | | Proposed | Proposed | |
| Title of | Amount | Maximum | Maximum | Amount of |
|Securities to be| to be |Offering Price| Aggregate | Registration|
| Registered |Registered(1) | Per Share(2) |Offering Price(2)| Fee(2) |
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| Common Stock | | | | |
| no par value |500,000 Shares| $2.88 | $1,440,000 | $424.80 |
---------------- -------------------------------------------------------------
(1) Estimated number of shares of Common Stock to be purchased under the
Plan in the open market and directly from the Company, if any, and
shares issued by the Company upon the exercise of warrants issued under
the Plan. In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Distributor
Stock Option Plan described herein.
(2) Shares are to be issued at prices currently undeterminable. Estimated
solely for the purpose of determining the registration fee pursuant to
Rule 457(h), and is based on the closing price of the Company's Common
Stock in the Nasdaq National Market on November 16, 1998.
<PAGE>
PART I
Pursuant to the Note to Part I of Form S-8, information required
under Items 1 and 2 of Form S-8 is omitted as a part of this Registration
Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the
fiscal year ended December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1998, June 30, 1998 and
September 30, 1998.
(c) The Definitive Proxy Statement dated April 17, 1998,
for the Annual Meeting of Shareholders held on May 21,
1998.
(d) The description of the Company's capital stock as set
forth in the Company's Form 8A Registration Statement
(File No. 1-11768), filed by the registrant with the
Commission on February 25, 1993, including any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be
passed upon for the registrant by Fishman, Merrick, Miller, Genelly, Springer,
Klimek & Anderson, P.C., Chicago, Illinois. Stephen M. Merrick, a shareholder in
that firm is a shareholder of and Secretary of the registrant.
1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 8.75 of the Illinois Business Corporation Act confers broad
powers upon corporations incorporated in that State with respect to
indemnification of any person against liabilities incurred by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other business entity. The
provisions of Section 8.75 are not exclusive of any other rights to which those
seeking indemnification may be entitled under bylaw, agreement or otherwise.
Article XII of the registrant's By-Laws provides that the registrant
shall have the power to indemnify any person who was or is party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the registrant) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
registrant, or who is or was serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the registrant, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Article XII also provides that the registrant shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the registrant, or is
or was serving at the request of the registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to the best interests of the
registrant, provided that no indemnification shall be made in respect of any
claim, issue or matter as to which such persons shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to the
registrant, unless, and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnify for such expenses as the
court shall deem proper.
To the extent that a director, officer, employee, or agent of the
registrant has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
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<PAGE>
Any indemnification under Article XII (unless ordered by court) shall
be made by the registrant only as authorized in the specific case, upon
determination that indemnification of a director, officer, employee or agent is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth above. Such determination shall be made:
(a) by the board of directors by a majority of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or
(c) by the shareholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the registrant in advance of the final disposition of
such action, suit or proceeding, as authorized by the board of directors in the
specific case, upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount, unless it shall ultimately be
determined that he or she is entitled to be indemnified by the registrant as
authorized in Article XII.
The indemnification provided by Article XII is not exclusive of any
other rights to which those indemnified may be entitled under any contract,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Article XII provides that the registrant shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the registrant, or is or was serving at the
request of the registrant, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his status as such, whether or not the registrant
would have the power to indemnify him or her against such liability under the
provisions of this Article. The registrant has not obtained such insurance to
date.
If a registrant has paid indemnity or has advanced expenses to a
director, officer, employee or agent, the registrant shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
3
<PAGE>
Section 2.10(b)(3) of the Illinois Business Corporation Act enables a
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision does not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 8.65 of the Illinois Business Act (regarding unlawful
dividends, stock purchases or stock redemptions) or (iv) for any other
transaction for which a director derived an improper personal benefit. The
Articles of Incorporation of the Company contain such a provision.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
4 Reliv' International, Inc. 1998 Distributor Stock
Purchase Plan.
5 Opinion of Fishman, Merrick, Miller, Genelly, Springer,
Klimek & Anderson, P.C.
23.1 Consent of Ernst & Young LLP, independent auditors of
Reliv' International, Inc.
23.2 Consent of Fishman, Merrick, Miller, Genelly, Springer,
Klimek & Anderson, P.C. (included in Exhibit 5 opinion
letter).
24 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this registration statement to
include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
4
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and if, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person
connected with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
----------
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chesterfield, State of Missouri, on November 18,
1998.
RELIV INTERNATIONAL, INC.
By: /s/ Robert L. Montgomery
-------------------------------
Robert L. Montgomery, President
THE PLAN
--------
Pursuant to the requirement of the Securities Act of 1933, the
Committee which administers the 1998 Distributor Stock Purchase Plan has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chesterfield, State of
Missouri on November 18, 1998.
PLAN:
RELIV' INTERNATIONAL, INC.
1998 DISTRIBUTOR STOCK PURCHASE PLAN
By: /s/ Robert L. Montgomery
-------------------------------------
Robert L. Montgomery,
Chairman of the Executive Committee
POWER OF ATTORNEY
-----------------
The undersigned officers and directors of Reliv' International, Inc.
hereby constitute and appoint Robert L. Montgomery and David G. Kreher, or
either of them, with power to act one without the other, our true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitutes,
may lawfully do or cause to be done by virtue hereof.
6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Date: November 18, 1998
By: /s/ Robert L. Montgomery
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Robert L. Montgomery, Chairman of the Board of Directors,
President and Chief Executive Officer, Treasurer
Date: November 18, 1998
By: /s/ David G. Kreher
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David G. Kreher, Senior Vice President, Chief Operating Officer,
Assistant Secretary (principal financial and accounting officer)
Date: November 18, 1998
By: /s/ Carl W. Hastings
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Carl W. Hastings, Executive Vice President,
Assistant Secretary, Director
Date: November 18, 1998
By: /s/ Thomas W. Pinnock III
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Thomas W. Pinnock III, Director
Date: November 18, 1998
By: /s/ Stephen M. Merrick
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Stephen M. Merrick, Secretary, Director
Date: November 18, 1998
By: /s/ Donald L. McCain
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Donald L. McCain, Director
Date: November 18, 1998
By: /s/ John Akin
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John Akin, Director
Date: November 18, 1998
By: /s/ Sandra S. Montgomery
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Sandra S. Montgomery, Director
Date: November 18, 1998
By: /s/ Thomas T. Moody
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Thomas T. Moody, Director
Date: November 18, 1998
By: /s/ Marvin W. Solomonson
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Marvin W. Solomonson, Director
7
EXHIBIT 4
This document constitutes part of a prospectus covering securities that hav
been registered under the Securities Act of 1933.
RELIV' INTERNATIONAL, INC.
1998 DISTRIBUTOR STOCK PURCHASE PLAN
------------------------------------
1. NATURE AND PURPOSE OF THE PLAN.
------------------------------
The purpose of this 1998 Reliv' International, Inc. Distributor Stock
Purchase Plan (the "Plan") is to give participating independent distributors
("Participants") of Reliv' International, Inc. (the "Company") a convenient
means to purchase shares of the Company's Common Stock, no par value (the
"Common Stock") and to provide additional incentive to these independent
distributors to exert their best efforts in building their Reliv' businesses.
Through the Plan, Participants will have the opportunity to allocate a portion
of their monthly compensation from the Company into the Plan to be used for the
purchase of the Company's Common Stock. Participants will also be able to make
cash payments which will be used to purchase shares of the Company's Common
Stock on behalf of the Participants. At the end of each calendar year, the
Company will grant warrants to purchase shares of the Company's Common Stock to
Participants based on the number of shares of Common Stock purchased by the
Participant under the Plan during the year through compensation check deduction.
The warrant exercise price will equal the market price for the Company's Common
Stock at year end.
2. DEFINITIONS.
-----------
As used in this document, the following capitalized terms will have the
meanings indicated:
2.1 "Administrator" will mean American Stock Transfer & Trust Company,
the Company's stock transfer company, or other entity appointed by the Committee
to service the Plan and act as its independent agent as provided hereinafter.
2.2 "Ambassador" shall mean a Distributor who reaches and maintains the
level of Ambassador under the Company's compensation plan as amended from time
to time.
2.3 "Board" will mean the Board of Directors of the Company.
2.4 "Committee" will mean the Compensation/Stock Option Committee of
the Board, or, in the absence of such a Committee, the Executive Committee of
the Board which administers the Plan.
2.5 "Common Stock" will mean the Company's common stock, no par value.
1
<PAGE>
2.6 "Distributor" will mean an individual, partnership, corporation or
other legal entity whose completed "Distributor Application and Agreement" has
been received and accepted by the Company and which continues in full force and
effect and whose distributorship is not the subject of suspension or termination
proceedings by the Company.
2.7 "Distributor Application and Agreement" will mean the official,
approved Reliv Distributor Application and Agreement form in effect and used by
the Company from time to time in the jurisdiction in which a Distributor
resides.
2.8 "Participant" will mean any Distributor who is participating in the
Plan.
2.9 "Plan" will mean this Reliv International, Inc. 1998 Distributor
Stock Purchase Plan, as the same may from time to time be amended.
2.10 "Servicing Agreement" will mean the agreement entered into by the
Company with the Administrator and any successor Administrator.
2.11 "Shares" will mean shares of Reliv' International, Inc. Common
Stock, which may be purchased from time to time under this Plan.
2.12 "Warrants" will mean warrants to purchase shares of Reliv'
International, Inc. Common Stock which may be issued from time to time to
Participants in accordance with and under the terms of this Plan.
3. ELIGIBILITY AND PARTICIPATION.
-----------------------------
Participants in the Plan will be subject to the following conditions:
3.1 Only Distributors in good standing who have reached the level of
Ambassador are eligible to participate in the Plan.
3.2 Contributions to the Plan may only be made by a Participant upon
the terms and conditions of the Plan and the Enrollment Forms.
3.3 Participation in the Plan is entirely voluntary. Each Ambassador
electing to participate in the Plan must evidence his or her election (and any
changes thereof, including without limitation any election to terminate
participation in the Plan as provided in Section 12, below) on such forms as
shall be supplied by the Company, including without limitation the 1998 Reliv'
Distributor Stock Purchase Plan Enrollment Form (collectively the "Enrollment
Forms") and in accordance with such administrative rules and procedures as may
be established by the Company.
3.4 Participation in the Plan by an eligible Ambassador will be
effective as of the first day of the calendar quarter following receipt and
approval of the completed Enrollment Forms. Notwithstanding the above, newly
qualified Ambassadors will also be able to enroll effective as of the first day
of the calendar month following the month they qualify as an Ambassador,
provided that a completed Enrollment Form is received and approved by that date.
Upon the effectiveness of the Plan, existing Ambassadors shall be permitted to
enroll effective as of January 1, 1999, provided a completed Enrollment Form is
received and approved by that date.
2
<PAGE>
4. CONTRIBUTIONS TO PLAN
---------------------
Contributions to the Plan will be made solely by the Participants. The
Company will not make any matching contributions to the Plan, except for the
warrants described in Section 12 below. All contributions will be subject to the
following:
4.1 A Participant may elect to have an amount not less than $50 and not
in excess of ten percent (10%) of his or her monthly compensation check deducted
by the Company from his or her compensation check and contributed to the
Participant's account, in lieu of receiving such amounts as compensation. This
election shall be made at the time of enrollment in the Plan or at the time a
Participant later elects to use direct deduction. A Participant may increase or
decrease the amount deducted from the compensation check from time to time
(within the limitations indicated above) by giving written notice to the
Company. A Participant may make additional direct contributions to the Plan as
provided in Paragraph 4.2 below in excess of the limitations set forth in this
Paragraph.
4.2 All Participants may make direct contributions to their accounts of
not less than $50.00 for the purchase of Shares, subject to the terms of the
Plan. Direct contributions should be sent directly by the Participants to the
Administrator at:
American Stock Transfer & Trust Company
Attn: AmTrust Dividend Reinvestment, Share
Purchase and Sale Program
40 Wall Street
New York, New York 10005
Participants may arrange for automatic monthly direct contributions of not less
than $50.00 from their bank accounts. To arrange for automated transfer of funds
from a bank account Participants must complete and return an authorization form
with either a voided blank check or pre-printed deposit ticket for the account
and from the bank on which the funds will be drawn. Automatic investment
withdrawals will be made on the 15th business day of each month and the funds
will be invested as part of the next purchase made on behalf of all
Participants.
4.3 The Plan is not qualified under Section 401(a) of the Internal
Revenue Code, and contributions made to the Plan will not be excluded or
deductible from a Participant's taxable income.
5. PARTICIPANT ACCOUNTS.
--------------------
5.1 An Ambassador who wishes to participate in the Plan shall complete
and deliver the Enrollment Forms to the Company. Enrollment Forms may be
obtained at any time upon written request to the Company. An Ambassador's
participation will be effective as provided in Section 3.4. Purchases on behalf
of a new Participant shall commence as soon as possible after the effective date
of the Participant's enrollment. Contributions in the form of deductions from
compensation checks will commence on the payment date (typically the 15th of the
month) that is at least twenty (20) days after the effective date of a
Participant's enrollment.
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<PAGE>
5.2 Upon enrollment in the Plan, a separate program account ("Account")
shall be established in the name of Participant. The relationship between the
Participant and the Administrator shall be governed by this Plan and the
Enrollment Forms.
5.3 The Administrator will provide each Participant with a yearly
report of Shares acquired for the Participant's Account under the Plan. No
purchases other than the purchase of Shares may be made through the Account and
no securities other than Shares may be held in the Account.
5.4 The Administrator will transmit to each Participant all proxy
statements, proxy cards, annual reports, meeting notices and other shareholder
communications received from the Company with respect to Shares acquired
pursuant to and held under the Plan in the Participant's Account. Proxies will
be voted with respect to full Shares held in a Participant's Account in
accordance with a Participant's instructions duly delivered to the
Administrator. If a proxy voting card is not completed and returned by a
Participant, the Shares in a Participant's Account will not be voted.
6. PURCHASE OF SHARES.
------------------
All purchases of Shares will be subject to the following terms as well
as the terms and conditions of the Servicing Agreement and policies and
procedures that may be adapted by the Committee.
6.1 The Company will remit to the Administrator the funds withheld from
a Participant's compensation check by the 20th of each month. All funds remitted
by the Company and funds deposited directly by the Participant will be held in
the Participant's Account. The Administrator shall apply funds accumulated in a
Participant's Account, together with all other funds of other Participants, to
the purchase on behalf of each Participant's Account of the maximum number of
Shares that can be purchased with the accumulated funds. Purchases will be made
on the open market on a weekly basis. However, depending on transaction volume,
purchases may be made on the daily or semi-weekly basis. In addition, if and
when the Company, in its discretion, makes Shares available for purchase into
the Plan, Shares may be purchased directly from the Company. Any funds remaining
in a Participant's Account after the purchase of such maximum number of Shares
of Common Stock will be retained in the Participant's Account and treated as a
part of the accumulation for the next period. No interest will be paid on any
cash held pending investment. The timing of all purchases, the price to be paid
for Shares of Common Stock purchased pursuant to the Plan and the source of such
Shares of Common Stock, i.e., open market purchases or purchases from the
Company, will be determined solely by the Administrator. Neither the Company nor
the Participants will have any control or influence on such purchases.
6.2 In the case of purchases of Common Stock on the open market, the
price to Participants will be the weighted average purchase price paid by the
Plan for Shares purchased that period. In the case of Shares of Common Stock
purchased from the Company, the price shall be determined by averaging the
closing sale prices for the Common Stock on the Nasdaq Stock Exchange during the
purchase period. If purchases of Shares are made over a period of time, the
Shares so purchased will be allocated to each Account based on the average price
paid for all Shares purchased in that period.
4
<PAGE>
6.3 All applicable transfer taxes, if any, in connection with the
purchase of shares of Common Stock under the Plan shall be paid by the
Participants on a pro rata basis in accordance with the number of shares of
Common Stock purchased for their Account. A Participant will pay $10.00 per
month toward the costs of administering the Plan. Except as otherwise provided
herein, all other costs of administration shall be paid by the Company.
6.4 Dividends on all shares held in Program Accounts will be reinvested
in additional shares of Common Stock. Participants may elect to reinvest cash
dividends paid on all or a portion of the Common Stock held in their Account in
certificate form (i.e., Shares deposited with the Administrator for safekeeping
- -- see Paragraph 9 below) by designating their election on the Enrollment Form.
Participants electing partial reinvestment of cash dividends must designate the
number of whole Shares of Common Stock in certificate form for which they want
to reinvest cash dividends. Dividends paid on all other certificated shares in
the Participant's name will be paid in cash. Reinvestment levels may be changed
from time to time as a Participant desires by notifying the Administrator in
writing.
6.5 In the event that the Company makes available to the holders of
Common Stock rights to purchase additional shares of Common Stock or other
securities, the Company will distribute such rights accruing to shares of Common
Stock to the Participants in the same manner as to shareholders who are not
Participants in the Plan.
7. SALE OF SHARES.
--------------
7.1 Participants may instruct the Administrator to sell any or all
Shares held in the Participant's Account. As with purchases, the Administrator
will aggregate all requests for Shares to be sold and sell the total share
amount on the open market in ordinary brokerage transactions using a brokerage
firm selected by the Administrator. The Shares will be sold on any exchange or
market in which the Shares are listed or quoted. As with purchases, Shares are
expected to be sold weekly, but depending on volume may be sold daily or
semi-weekly. The selling price will not be known until the sale is completed.
7.2 Participants should be aware that the price for their Shares may
fall during the period between a request for sale, its receipt by the
Administrator and the ultimate sale on the open market. Instructions sent to the
Administrator to purchase or sell Shares may not be rescinded, and are binding
to the Participant. The Administrator may, in its sole discretion, accept
written requests to revoke sell instructions.
7.3 Following the sale, the net proceeds of the sale will be sent by
check to the Participant at the address of record. A fee of $10.00 will be
deducted from the net sale amount. The statement accompanying the check should
be retained for tax purposes. If the Shares sold are insufficient to cover the
processing fee of $10.00, a check will not be issued nor will the Participant be
billed for additional fees due.
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<PAGE>
7.4 To request the sale of any or all Shares in the Plan, Participants
should complete the bottom portion of the confirmation statement provided to the
Participant. The request should indicate the Shares to be sold and not the
dollar amount to be attained. All Participants listed should sign the request.
Mail the instructions to the Administrator:
American Stock Transfer & Trust Company
Attn: AmTrust Dividend Reinvestment, Share
Purchase and Sale Program
40 Wall Street
New York, New York 10005
All sales are subject to income tax reporting. It is solely the Participant's
responsibility to determine the tax consequences of such sales and it is
suggested that a tax advisor be consulted.
8. DEPOSITS FOR SAFEKEEPING.
------------------------
8.1 Participants may elect to deposit certificates for Shares otherwise
owned into their Account. The Administrator will credit these Shares to the
Participant's Account in the form of book entry shares. Certificates for
safekeeping can be sent to the Administrator when enrolling in the Plan along
with a completed Enrollment Application. Once enrolled, additional certificates
for safekeeping should be sent to the Administrator along with the completed
bottom portion of the statement of account provided to the Participant. The
certificates to be deposited, together with an Enrollment Application or bottom
part of the statement, should be sent registered mail to the Administrator along
with a check or money order for $7.50 to:
American Stock Transfer & Trust Company
Attn: AmTrust Dividend Reinvestment, Share
Purchase and Sale Program
40 Wall Street
New York, New York 10005
8.2 It is suggested that Participants use registered mail when sending
stock certificates, insured for 2% of the market values of the Shares, which
would be the approximate cost of replacing the certificates should they be lost
in the mail. Certificates should not be endorsed. Participants should keep their
own records as to the original cost basis for any certificates deposited into
the Account.
8.3 There is a transaction fee of $7.50 for each deposit of
certificates. Multiple certificates may be deposited at the same time for a
single transaction fee of $7.50. A check made to the order of American Stock
Transfer & Trust Company for the total of $7.50 should be sent along with the
certificates to be deposited. Certificates received with instructions to deposit
Shares will be rejected if a check for $7.50 is not received.
8.4 The fee for depositing certificates will be waived if the
certificates are being deposited with simultaneous instructions to sell Shares.
In this case, both the deposit and sale boxes of the instructions should be
checked, and the fees associated only with the transactions for selling of
Shares will apply. See above section on Sale of Shares for applicable fees
associated with the sale of Shares.
6
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9. STOCK WITHDRAWALS.
-----------------
A Participant may request the Administrator to issue a certificate(s)
for some or all of the Shares in the Account. The request for issuance of a
certificate for full Shares of Common Stock only should be made using the bottom
portion of the confirmation statement. There is no fee to Participant to issue a
certificate. However, if the Participant requests the termination of
participation in the Plan, a certificate for the number of full Shares of Common
Stock held will be issued and any fractional Share held will be sold in
accordance with the terms of the Plan. The terms and conditions of the Plan call
for the sale of any fractional Shares and the closing of the Account if the
Shares held by the Participant fall below one (1) Share. The Participant may
receive a check for the net proceeds from the sale of any fractional Share of
Common Stock. However, if the fractional Share sold is insufficient to generate
the fee ($10.00) for the sale, a check will not be issued and the Participant
would not be billed for any amount due. See above section on the Sale of Shares
for applicable fees associated with selling of Shares.
10. STOCK DISTRIBUTIONS.
-------------------
Any stock dividends, distributions or stock split shares distributed on
Shares held by the Administrator for a Participant in the Plan, including any
fractional Share distributions, will be credited directly into the Participant's
Account. A certificate will be issued for whole Shares of Common Stock held in
certificated form registered in the Participant's name.
11. WARRANTS.
--------
11.1 Participants shall receive at the end of each calendar year
warrants to purchase shares of the Company's Common Stock. The number of
warrants issued shall be an amount equal to one-quarter (25%) of the total
shares purchased for a Participant under the Plan during the year through direct
deductions from compensation checks. Notwithstanding the above, the number of
warrants issued each year will not exceed one-quarter (25%) of the total shares
of common stock in the Participant's Account at the end of the year. Direct cash
contributions to the Plan and Shares deposited in the Account for safekeeping
will not be taken into account for this calculation. The warrants will be issued
on or about December 31st of each year.
11.2 The warrants shall be for a term of three years, and will vest
one-third on the June 30 immediately following the date of issue, and one-third
on each of the two following June 30's. For example, if a warrant for 3,000
Shares were issued on December 31, 1999, 1,000 Shares would vest on June 30,
2000, an additional 1,000 Shares would vest on June 30, 2001, and the remaining
1,000 Shares would vest on June 30, 2002. The warrants would terminate on
January 1, 2003.
11.3 The warrant exercise price shall equal the closing price of the
Company's Common Stock on the last business day of the calendar year as
published by the Nasdaq Stock Exchange or other national exchanges on which the
Company's Common Stock is listed.
11.4 A Participant shall be eligible to receive warrants only if at the
time the warrants are to be issued the Participant is an Ambassador in good
standing.
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11.5 The warrants shall terminate, and all rights of a warrant holder
to exercise a warrant, whether or not such rights are vested, shall end,
immediately upon the termination of the Participant's status as a Distributor in
good standing, except as a result of a Distributor's death.
11.6 Upon the death of a Participant warrant holder, said warrant
holder's representative shall have the right to exercise any warrants held by
such individual's estate, to the extent such warrants are vested, for a period
of 60 days following the date of death.
11.7 The warrants are non-transferable and any purported transfer shall
be void.
11.8 Participants will not be subject to U.S. income tax upon the
receipt of warrants but may be subject to U.S. income tax upon the exercise of
the warrants, depending on the market value of the Company's Common Stock at the
time of exercise.
12. TERMINATION OF PARTICIPATION UNDER THE PLAN.
--------------------------------------------
A Participant's participation in the Plan shall immediately terminate if and
when:
12.1 The Participant voluntarily elects to cancel its participation in
the Plan (such cancellation to be effective as of the date of receipt by the
Company of a properly executed Termination Form evidencing such termination,
such Termination Form to be acquired from the Company);
12.2 The Participant ceases to be eligible to participate in the Plan
by reason of the termination of the Participant as an Ambassador, due to the
Participant's death (if an individual), dissolution or liquidation, or
otherwise; or
12.3 The Participant has made no Contributions under the Plan for a
continuous period of twelve months.
Upon withdrawal or termination of participation (other than by reason
of the Participant's death), any funds contributed by the Participant that
remain in the Participant's Account will be paid to the Participant in
accordance with such administrative rules and procedures as are established by
the Committee, without payment of interest thereon, and any shares of Common
Stock held in the Participant's Account will be delivered to the Participant.
Upon the death of the Participant, any funds that remain in the Participant's
account and any shares of Common Stock held in the Participant's Account will be
distributed to the Participant's designated beneficiary. A Participant who
withdraws or whose participation is terminated, may elect to convert the Account
to a Dividend Reinvestment, Share Purchase and Sale Program account with the
Administrator following termination or withdrawal, subject to approval by the
Administrator and compliance with the Administrator's policies and procedures
governing such accounts.
12.4 A Participant whose participation in the Plan is terminated may,
after a period of six (6) months from the date participation is terminated,
elect to again participate in the Plan so long as the Participant continues to
be an Ambassador in good standing, is otherwise eligible to do so, and completes
and delivers to the Company appropriate Enrollment Forms.
8
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13. NO ASSIGNMENT OF PLAN INTERESTS.
-------------------------------
No rights of a Participant under this Plan, including without
limitation such Participant's rights in and to its Account, are assignable by
the Participant by operation of law or otherwise. Any attempt by a Participant
or other person to assign, alienate, or create a security interest in or
otherwise encumber, any of the Participant's interest under the Plan, or to
subject the same to attachment, execution, garnishment or other legal or
equitable process shall be void.
14. EFFECTIVE DATE; AMENDMENT; TERMINATION.
--------------------------------------
14.1 The effective date of the Plan is November 20, 1998. The Plan will
terminate on November 20, 2008, the tenth (10th) anniversary of the effective
date hereof, unless earlier terminated in accordance with the following
paragraph. No Shares may be purchased pursuant to the Plan subsequent to its
termination.
14.2 The Administrator and the Committee reserves the right to modify
the Plan, including the right to terminate the Plan upon notice to Plan
Participants. In addition, the Administrator and the Committee reserves the
right to interpret and regulate the Plan as it deems necessary or desirable in
connection with its operation.
14.3 Promptly after any termination of the Plan, each Participant will
receive any funds contributed by the Participant that remain in, and the Shares
credited to, Participant's Account as of the date of termination without
interest thereon and subject to the additional terms and conditions contained in
the Servicing Agreement.
15. ADMINISTRATION.
--------------
The Plan will be administered by the Committee, which shall have all of
the powers of the Board with respect to the Plan. The Plan will not be subject
to the provisions of the Employee Retirement Income Security Act of 1974
("ERISA"). Any and all decisions or determinations of the Committee shall be
made either (i) by a majority vote of the members of the Committee at a meeting
or (ii) without a meeting by the unanimous written approval of the members of
the Committee. The Committee may, from time to time, adopt rules and regulations
for carrying out the purposes of the Plan. The determinations and interpretation
and construction of any provision of the Plan by the Committee shall be final
and conclusive. Notwithstanding the foregoing, the Committee has appointed the
Administrator to serve as administrator of the Plan and agent for the Committee.
The Administrator's duties shall include establishing and maintaining a separate
Account for each Participant, purchasing Shares on behalf of Participants'
Accounts, maintaining records of each Participant's Account and furnishing to
each Participant the reports required by the Plan. The Committee shall direct
the Administrator with regard to its duties under the Plan. The Committee may
employ accountants, legal counsel and other agents to assist in the performance
of its duties under the Plan. All reasonable expenses of the Committee in
connection with its administration of the Plan shall be borne by the Company as
provided in this Plan.
9
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16. TRANSFER OF SHARES TO PARTICIPANTS.
----------------------------------
As a condition to the purchase of any Shares for the benefit of, or the
transfer of any Shares to a Participant pursuant to the Plan, the Committee may
require such agreements or undertakings, if any, as the Committee may deem
necessary or advisable to assure compliance with any law or regulation,
including, but not limited to a representation, warranty and/or agreement to be
bound by any legends that are, in the opinion of the Committee, necessary or
appropriate to comply with the provisions of any securities law deemed by the
Committee to be applicable to the Participant's acquisition of such Shares and
are endorsed upon the certificates therefor.
17. OTHER TERMS
-----------
17.1 The Company will reimburse the Administrator for the printing and
mailing of the Brochures and Enrollment Forms. Fees and expenses normally
associated with Transfer Agent functions will also be paid by the Company.
17.2 Neither the Company or the Administrator will be liable for any
act performed in good faith or for any good faith omission to act, including,
without limitation, any claim of liability arising out of (i) failure to
terminate a Participant's Account, sell Shares in the Plan, or invest optional
cash payments without receipt of proper documentation and instructions; (ii)
with respect to the prices at which Shares are purchased or sold for the
Participant's Account and the time such purchases or sales are made, including
price fluctuations in market value after purchases or sales.
17.3 If the total number of Shares in the Participant's Account is less
than one (1) Share, any remaining fractions will be sold and the Account closed.
See above section on the Sale of Shares for applicable fees associated with the
selling of Shares.
17.4 The Company will provide without charge to each person, including
any beneficial owner to whom a copy of this Plan/Prospectus is delivered, upon
written or oral request by such person, a copy of all or any documents filed by
the Company pursuant to the Securities Act of 1933 or the Securities Exchange
Act of 1934 in connection with the registration of this Plan, including all
documents that may be incorporated by reference in any such filing.
17.5 The Plan shall be governed by and construed in accordance with the
laws of the State of New York. The signing and mailing of the Enrollment Forms
shall constitute an offer by the Participant to establish an agency relationship
with American Stock Transfer & Trust Company and be governed by the terms and
conditions of the Plan.
18. INTERPRETATION.
--------------
18.1 If any provision of the Plan should be held invalid or illegal for
any reason, such determination shall not affect the remaining provisions hereof,
but instead the Plan shall be construed and enforced as if such provision had
never been included in the Plan.
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18.2 Headings contained in this Plan are for convenience only and shall
in no manner be construed as part of the Plan. Any reference to the singular or
plural number, or to the masculine, feminine or neuter gender, shall be a
reference to such other number or gender, as the case may be, as it appropriate.
ADOPTED BY RESOLUTION OF THE BOARD OF DIRECTORS, EFFECTIVE THE 20th DAY
OF NOVEMBER, 1998.
RELIV' INTERNATIONAL, INC.
By:/s/ Stephen M. Merrick
------------------------
Corporate Secretary
11
EXHIBIT 5
November 19, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 Relating to the
Reliv' International, Inc. 1998 Distributor Stock
Purchase Plan (the "Plan")
Ladies and Gentlemen:
As legal counsel for Reliv' International, Inc., an Illinois
corporation (the "Company"), we are rendering this opinion in connection with
the preparation and filing of a registration statement on Form S-8 (the
"Registration Statement") relating to the registration under the Securities Act
of 1933, as amended, of interests in the Reliv' International, Inc. 1998
Distributor Stock Purchase Plan and up to 500,000 shares of Common Stock, no par
value (the "Common Stock") to be offered and sold through the Plan.
We have examined such instruments, documents and records as we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the Plan
interests and the shares of Common Stock of the Company being registered
pursuant to the Registration Statement are, respectively, duly authorized
securities of the Company and, in the case of the Common Stock, duly authorized
shares of Common Stock which, when sold, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
This opinion is to be used only in connection with the Plan and the
issuance of the Common Stock while the Registration Statement is in effect.
Respectfully submitted,
/s/ FISHMAN, MERRICK, MILLER, GENELLY,
SPRINGER, KLIMEK & ANDERSON, P.C.
------------------------------------
FISHMAN, MERRICK, MILLER, GENELLY,
SPRINGER, KLIMEK & ANDERSON, P.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference into the Registration Statement
(Form S-8, No. 33- ) pertaining to the Reliv' International, Inc. 1998
Distributor Stock Purchase Plan of our report dated March 17, 1998, with respect
to the consolidated financial statements and schedule of RELIV' International,
Inc., included in its annual Report (Form 10-K) for the year ended December 31,
1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG, LLP
-------------------------
ERNST & YOUNG, LLP
St. Louis, Missouri
November 13, 1998
